NARIKUNNAN PATHUMMAKUTTY Vs. P BABU

JUDGEMENT

(1.) Appellants are the claimants in O.P. (MV) No. 1746/90. Deceased Aboobacker on 2-7-1989 was riding a motor cycle with his brother Moideen. A bus driven by the 1st respondent came from the opposite direction and dashed upon the motor cycle. Aboobacker succumbed to the injuries due to the accident. A claim petition was filed stating that the deceased was employed in Soudi Arabia and he was earning more than Rs. 10,000 per month and, therefore, total claim was filed for Rs. 5,00,000/- as damages. Aboobacker was aged 45 at the time of his death. Mother, two wives and children of the deceased were the claimants. Against claim of Rs. 5,00,000/- the Tribunal awarded Rs. 1,73,400/- with interest. The Tribunal noticed that no evidence regarding salary was adduced, but since the deceased was working in foreign country, he was earning good amount as salary and therefore Rs. 1,000/- was fixed as monthly loss of dependency and Rs. 12,000/- was taken as the annual financial dependency and 10.45 was taken as the multiplier and Rs. 1,25,400 / - was given for compensation for financial dependency. With regard to the loss of love and affection and.funeral expenses sufficient amount was awarded.

(2.) The only question to be considered in this case is compensation granted under the head of loss of dependency. As per the Second Schedule of the Motor Vehicles Act, the persons above 40 years but not exceeding 45 years the multiplier to be taken into account as 15. The Supreme Court in United India Insurance Co. Ltd. etc. v. Patricia Jean Mahajan and Ors. etc. JT 2002 (5) SC 74 after analysing all the cases decided earlier on the point held that even though accident happened prior to the enactment of Second Schedule, the multiplier shown in Second Schedule can be accepted as a guideline unless there are other compelling reasons. Here the deceased was 45 years (as per the post mortem report he was only 37). His two wives were below 35 and he has 6 minor children at the time of the accident. Therefore, on the facts of this case the Tribunal ought to have taken 15 as the multiplier. With regard to the salary even though no evidence was adduced before the court below, certificate from the employer is produced before this Court along with CMP No. 6974799 which shows that his basic salary was SR - .3500 per month. The above certificate also shows that he joined the service at Saudi Arabia on 9th June, 1983 and he departure to India on 6th May, 1989 for annual vacation for 4 months and he was working as a Senior Sales Supervisor / Asst. Sales Manager and during the leave he died. Even though the above certificate was produced in 1999 with a petition to accept the same no objection was filed by any one of the respondent. Hence the above certificate was marked as Ext.C1 No dispute was raised by the respondents regarding the genuineness of the above certificate. If the conversion rate as existed at the time of accident is applied in Indian rupee it would have exceeded Rs. 40,000/-. In Oil and Natural GAs Commission v. Forasal, 1988 Supl. SCC 263 it was held that the foreign exchange rate that has to be applied is the existing rate at the time of the judgment. In JT 2002(5) SC 74 (Supra) the above view was reiterated. But here the appellants claimed that loss of dependency income is only as Rs. 10,000/- per month. Even if Rs. 10,000/- only is taken as a loss of dependency and 15 is taken as the multiplier the amount would be more than Rs. 18,00,000 /

(3.) The award is modified accordingly and the appeal is allowed.